Citation Nr: 9830822
Decision Date: 10/16/98 Archive Date: 10/21/98
DOCKET NO. 95-30 785 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUES
Entitlement to an increased (compensable) rating for left eye
blindness.
Entitlement to special monthly compensation based on
blindness of left eye, having only light perception.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
The appellant served on active duty from March 1944 to
December 1945.
This appeal to the Board of Veterans’ Appeals (Board) arises
from a July 1995 rating decision of a regional office (RO) of
the Department of Veterans Affairs (VA). That rating
decision granted entitlement to compensation pursuant to the
provisions of 38 U.S.C.A. § 1151 for left eye blindness. A
noncompensable rating was assigned for left eye blindness and
the RO denied entitlement to special monthly compensation
(SMC) on account of blindness of one eye. In reaching its
determinations, the RO compared the extent of left eye visual
impairment before and after VA treatment.
In a statement in support of his claim received in September
1997, the veteran requested service connection for a skin
disorder affecting the hands and back and service connection
for hypertension. These issues have not been developed for
appellate review. Accordingly, they are referred to the RO
for any action deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that the veteran is entitled to assignment of a compensable
rating and to an award of SMC for left eye blindness. In
this regard, they assert that the veteran had light
perception in the left eye prior to VA surgery, and
thereafter had no light perception.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports a grant
of a 10 percent rating for left eye blindness; further, that
the preponderance of the evidence is against a grant of SMC
based on loss of use of the left eye.
FINDINGS OF FACT
1. The veteran had glaucoma of the left eye, permitting only
light perception, prior to his admission to VA
hospitalization on March 7, 1979.
2. Cyclocyrotherapy was performed during the veteran’s
hospitalization by VA from March 7, 1979 to March 21, 1979.
3. Postoperatively, the veteran had no light perception of
the left eye; he now has phthisis bulbi of the left eye, in
addition to the absence of light perception.
CONCLUSIONS OF LAW
1. A 10 percent rating for left eye blindness is warranted.
38 U.S.C.A. §§ 1155, 1160 (West 1991); 38 C.F.R. §§ 3.322,
4.1, 4.2, 4.7, 4.78, 4.79, 4.84a, Diagnostic Codes 6066, 6070
(1998).
2. The veteran is not entitled to SMC based on loss of use
of the left eye. 38 U.S.C.A. §§ 1114(k), 5107 (West 1991);
38 C.F.R. §§ 3.322, 3.350(a), 4.78, 4.79 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
VA outpatient treatment records, dated from October 1978
through March 7, 1979, reflect the veteran’s evaluation and
treatment for glaucoma involving the left eye. It was
reported that the left eye had only light perception;
uncorrected visual acuity of the right eye was variously
recorded as 20/20 or 20/25.
The veteran was hospitalized at a VA medical facility from
March 7, 1979 to March 21, 1979. He presented complaining of
pain and elevated pressure affecting the left eye.
Examination on admission showed that the left eye had only
light perception; best corrected visual acuity of the right
eye was 20/20. Ocular pressure of the left eye was 68 mm of
mercury. The veteran had an ischemic left eye, with the
retinal artery occluded and the choroid almost totally
infarcted. He was treated medically to reduce the pressure,
and then underwent cyclocryotherapy of the left eye.
VA outpatient treatment records reflect continuing evaluation
and treatment of the left eye postoperatively. On April 10,
1979, it was found that the left eye had no light perception;
visual acuity of the right eye was 20/20. Subsequent
treatment notations through June 1980 show that the left eye
had no light perception; visual acuity of the right eye was
variously recorded as 20/20, 20/25 and 20/30.
Statements were received in October 1994 and November 1994
from Joseph L. Migliori, M.D. The ophthalmologist related
that the veteran was examined in September 1994, at which
time his best corrected visual acuity in the left eye was no
light perception. Best corrected visual acuity of the right
eye was recorded as 20/25 and 20/30.
VA outpatient reports of September 1995 to January 1996
reflect the veteran’s evaluation and treatment for conditions
other than his left eye disorder. An incidental notation was
made indicating that he was blind in the left eye.
A hearing was held in February 1996 before an RO hearing
officer. The veteran testified that, prior to VA eye surgery
in March 1979, he had been able to distinguish light and dark
with the left eye; thereafter, he had experienced total
blindness of the left eye.
Received in July 1996 was a report from the Massachusetts Eye
and Ear Infirmary. It reflects that the veteran was treated
at that facility in March 1981. It was noted that the
veteran had experienced secondary glaucoma stemming from
penetration of the left eye by a foreign body about 30 years
before. Currently, he had no light perception in the left
eye.
VA outpatient reports of July 1996 to August 1997 reflect the
veteran’s evaluation and treatment for conditions other than
his left eye disorder. Incidental notations reference the
diagnosis of glaucoma.
A statement was received in November 1997 from Dr. Migliori.
He reported that the veteran had been under his care since
November 1988. The current diagnoses were chronic open-angle
glaucoma, right eye; phthisis bulbi, left eye; and cataract,
right eye.
II. Legal Analysis
The veteran claims that a higher schedular rating should be
assigned for left eye blindness and that he should be awarded
SMC because of left eye blindness. Central to both claims is
the assertion of an increase in disability. The United
States Court of Veterans Appeals (Court) has held that, when
a veteran claims that a service-connected disability has
increased in severity, the claim is well-grounded.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Having
determined that the appellant’s claims are well-grounded, the
Board is also satisfied that all relevant facts have been
properly developed and that no further assistance to the
appellant is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
A. Increased Rating for Left Eye Blindness
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998).
Separate diagnostic codes identify the various disabilities
and the criteria that must be met for specific ratings. The
regulations require that, in evaluating a given disability,
the disability be viewed in relation to its whole recorded
history. 38 C.F.R. §§ 4.1, 4.2 (1998).
A 30 percent rating is warranted for blindness of one eye,
having only light perception, under circumstances where
service connection is not in effect for impairment of the
other eye, or where visual impairment in the other eye is
20/40 or better. 38 C.F.R. § 4.84a, Diagnostic Code 6070
(1998).
A 40 percent rating is warranted for anatomical loss of one
eye, under circumstances where service connection is not in
effect for impairment of the other eye, or where visual
impairment in the other eye is 20/40 or better. 38 C.F.R.
§ 4.84a, Diagnostic Code 6066 (1998).
In cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the
degree of disability existing at the time of entrance into
active service, whether the particular condition was noted at
the time of entrance into active service, or whether it is
determined upon the evidence of record to have existed at
that time. It is necessary to deduct from the present
evaluation the degree, if ascertainable, of the disability
existing at the time of entrance into active service, in
terms of the rating schedule except that if the disability is
total (100 percent) no deduction will be made. If the degree
of
disability at the time of entrance into service is not
ascertainable in terms of the schedule, no deduction will be
made. 38 C.F.R. § 3.322 (1998).
In determining the effect of aggravation of visual
disability, even though the visual impairment of only one eye
is service connected, evaluate the vision of both eyes,
before and after suffering the aggravation, and subtract the
former evaluation from the latter except when the bilateral
vision amounts to total disability. In the event of
subsequent increase in the disability of either eye, due to
intercurrent disease or injury not associated with the
service, the condition of the eyes before suffering the
subsequent increase will be taken as the basis of
compensation subject to the provisions of § 3.383(a) of this
chapter. 38 C.F.R. § 4.78 (1998).
Loss of use or blindness of one eye, having only light
perception, will be held to exist when there is inability to
recognize test letters at 1 foot and when further examination
of the eyes reveals that perception of objects, hand
movements or counting fingers cannot be accomplished at 3
feet, lesser extents of visions, particularly perception of
objects, hand movements, or counting fingers at distances
less than 3 feet, being considered of negligible utility. 38
C.F.R. § 4.79 (1998).
The medical evidence establishes that the veteran had only
light perception in the left eye prior to VA surgery to
relieve pressure from glaucoma. Postoperatively, the left
eye no longer had light perception. The RO determined that
left eye visual impairment was aggravated through VA
treatment and granted compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151. Governing criteria
relating to rating of preexisting disabilities which have
been aggravated by service also apply to disabilities which,
as in this case, were aggravated through VA treatment. This
is because for purposes of entitlement to increased ratings
and for purposes of entitlement to special monthly
compensation under 38 U.S.C.A. § 1114(k), disorders which are
the subject of an award of compensation benefits under
38 U.S.C.A. § 1151 are treated as if they are service-
connected disabilities. In computing the degree of
aggravation and taking consideration of the provisions of
38 C.F.R. §§ 3.322 and 4.78, the Board has noted that
significant visual impairment in the right eye was not
present prior to or shortly after the March 1979 surgery,
and, even as late as September 1994, corrected visual acuity
in the right eye was still better than 20/40.
Examinations in recent years by the veteran’s ophthalmologist
have demonstrated that visual acuity of the nonservice-
connected right eye is retained. Since the veteran is not
blind in the right eye, impairment of visual acuity in the
right eye may not be considered in determining entitlement to
an increased rating or in determining entitlement to special
monthly compensation. 38 U.S.C.A. § 1160 (West 1991); 38
C.F.R. § 3.383(a) (1998). As noted above and absent
preexisting disability of the left eye, a 30 percent
evaluation is provided for blindness of that eye, having only
light perception; a 40 percent evaluation is provided for
anatomical loss of that eye. In this case, the veteran has
no light perception in the left eye; in addition, he has
phthisis bulbi of the left eye, a condition involving
shrinkage and wasting of the eyeball. See Dorland’s
Illustrated Medical Dictionary 1289 (27th ed. 1988).
Considering both the absence of light perception in the left
eye and the phthisis bulbi, the Board believes that the
disability picture presented more nearly approximates the
criteria contemplated by the 40 percent evaluation for
application to anatomical loss of one eye. 38 C.F.R. § 4.7
(1998). The Board concludes that the medical evidence
supports assignment of a 10 percent evaluation for left eye
blindness, after subtracting a 30 percent rating from a 40
percent rating to take account of the extent of preexisting
visual loss. In reaching its determination, the Board has
been mindful of the doctrine of the benefit of the doubt. 38
U.S.C.A. § 5107(b) (West 1991).
B. SMC for Left Eye Blindness
Special monthly compensation is payable for blindness of one
eye, having only light perception. 38 U.S.C.A. § 1114(k)
(West 1991); 38 C.F.R. § 3.350(a) (1998).
Here, the award of section 1151 benefits for left eye
blindness is based on aggravation. Specifically, the left
eye, prior to VA treatment, had only light perception; after
VA treatment, the left eye had no light perception. An award
of SMC based on blindness of one eye is predicated on the
affected eye having only light perception. Governing
criteria pertaining to awards of SMC with respect to one eye,
(as distinguished from both eyes), do not provide for higher
levels of SMC based on blindness resulting from absence of
light perception or from anatomical loss. In other words,
the SMC award at the “k” rate for unilateral blindness does
not distinguish between various gradations of blindness
beyond an eye having only light perception.
In this case, the record demonstrates that the veteran had
left eye blindness consisting of only light perception prior
to VA treatment; thereafter, he had left eye blindness
without light perception. The preexisting degree of visual
impairment warranted assignment of SMC at the “k” rate, as
did the additional degree of visual impairment following VA
surgery. Since the preexisting degree of blindness was
already severe enough to warrant assignment of SMC at the
“k” rate, the additional visual loss, in this instance,
does not warrant an award of SMC.
ORDER
A 10 percent rating for left eye blindness is granted,
subject to governing criteria pertaining to the payment of
monetary awards.
Special monthly compensation based on blindness of the left
eye, having only light perception is denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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